April 11, 2012

"Do you think the Supreme Court justices will rule on this case mainly on the basis of law or mainly on the basis of their partisan political views?" That's a question on a new WaPo/ABC poll that comes right after a question about what people want to see happen.

Only 25% of Americans — random Americans, not likely voters — want the law upheld in its entirety. 67% want it stricken down in whole (38%) or in part (29%). But the WaPo article on the poll is headlined: "More Americans expect Supreme Court’s health-care decision to be political." On the is-it-law-or-politics question, 50% think the Court will go mostly on partisan politics, and only 40% think the Court will do what it purports to do and decide the case based on the law (or even mainly based on the law).

Do you see what WaPo is doing there? Highlighting the answer to the is-it-mostly-political question serves the agenda of those who want the law upheld. These people side with President Obama, who argues, conspicuously, that if the Supreme Court strikes down the law, it will be behaving in an inappropriately political manner. By stressing the poll respondents' mistrust of the Court's neutrality, the WaPo gives the impression that they agree with people who think the Court should stand down and let the work of the democratically elected Congress prevail. After all, if the Court doesn't have a firm legal ground for an exercise of power, it makes no sense for it to trump Congress.

Now, those who want the law upheld are massively outnumbered. According to this poll, there are 2.7 times as many people who want the Court to strike the law down. But if what the Court is really doing is partisan politics, this much larger group doesn't matter. It's as if these people would like a second trip through Congress. But Congress voted, the President signed the law, and that's that, politically. In that view, the 67% don't count.

But let's examine that poll question again: "Do you think the Supreme Court justices will rule on this case mainly on the basis of law or mainly on the basis of their partisan political views?" Consider the missing detail. I would like to see the answer to these questions: If the Supreme Court strikes down the health care law — in whole or in part — do you think that will be a decision based primarily on constitutional law or a decision based primarily on the Justices' political opinions? If the Supreme Court upholds the health care law, do you think that will be a decision based primarily on constitutional law or a decision based primarily on the Justices' political opinions?

Since we don't know what the respondents think the Court is going to do, we can't tell which Justices are being accused of behaving politically. What portion of the 50% who say it's mainly political think all 9 Justices, whichever side they take, will be mainly political? As they calculate, on the fly, what the Court "mainly" does, they could be thinking: Well, Scalia/Kagan is about 90% political, and Thomas/Sotomayor is about 30% political... etc. etc.... that seems to add up to I'd say probably, overall, 50+% political....

You see the problem! It's quite possible that many respondents were thinking of the Justices they don't like, fearing those are the ones who'll have the majority, and accusing them of deciding politically. Do the respondents have an opinion on the legal question itself? The pollsters could have asked: Do you think, purely as a matter of constitutional law, that the statute is constitutional or unconstitutional? Then: If the Supreme Court decides the case that way, do you think it will be a decision based mainly on law?

Instead, we get a crude question, with all these details hidden. On the poll results page, the first link above, we see "Questions 14 to 18 held of [sic] future release." Questions 12 and 13 are the 2 questions I've discussed here. So there is more detail, and it is now being withheld. The article, the second link above, does reveal something of what kinds of additional questions were asked:

Almost twice as many conservative Republicans think the court will decide on the basis of the law rather than politics, 58 to 33 percent. Liberal Democrats are more skeptical, saying by an equally wide margin that the court will put politics first.

That's not quite what I want to know. Perhaps there's more. I'll be interested to see when and how WaPo dribbles it out.

By the way, the photograph under the headline shows a woman holding up a sign that says "Obamacare Is Immoral," tipping the reader to think that the threatened political decision is the decision that strikes down the law. Since this, I think, is something WaPo does not want to see happen, there's a message to the Court: If you strike down the law, it will be seen as mere politics.

40 comments:

It's hardly news that the American people have largely lost trust in the Supreme Court.

But if many expect the Court's decison to be political, that cuts both ways. For surely one could criticize the four Liberal judges for upholding the law in its entirety (if they do) as dereliction of their duty to find it unconstitutional.

The most interesting thing about this is no one has questioned how Sotomayor, Kagan, Ginsburg, Breyer or Thomas are going to vote. The people whose votes have been up in the air or questioned, by at least one news source I can recall, are Roberts, Kennedy and to a much lesser extent, Scalia and Alito (citing a few cases where Scalia and Alito found in favor of broader government powers, but overall, those two have usually been considered conservative locked in votes).

So, really, the question is whether you think the majority of the justices have reached their decision through politics or legal analysis. I don't agree with "liberal" justices, but I honestly feel that they are trying to reach legal, thought out conclusions and not knee-jerk political ones. So, I'd have said that they were not finding it based on politics, even though I have no idea how Kennedy is going to vote.

Also, I don't think it is news any more that a majority want the law overturned in whole or in part. That's old news.

I look forward to the MSM freakout when the polling results say Romney will swamp Prez Obama in the election. That will be coming soon to your neighborhood lamestream media. It will be very entertaining so buy some popcorn!

This is not hard. We know how this works. Principle and bi-partisanship are only displayed when right wingers side with left wingers. Never the other way around. The fact that the 4 Democrat appointees vote in lock step more often than not is never seen as a political or partisan move, but it's always partisan or political if a majority of the Republican appointees come to the same conclusion.

Hell, the people who voted against the law were more bipartisan than the people who voted for it. But, you never hear any concerns from these people over the hyperpartisan nature of the law's passing in the first place. It's all 'democracy, democracy, where have you gone?'

And we don't even need to get started on just how different this Court vs Congress argument would be spun if the Court were to strike down, say, DOMA, do we?

The partisan blinders are on the people who write this crap, far more than anything that goes on at the Supreme Court.

Because a bill became a law, following the process laid out in the Constitution.

Is the Constitution silent in terms of Senate inner-workings, specifically in regard to the use of reconciliation to pass a bill?

In another regard, X makes a good point from a purely political point of view. If a person is convinced that SCOTUS decisions, particularly this decision, are inherently political, then that person must accept X's premise and admit that events were meted out in a logical context of politics. Otherwise, that person wouldn't appear to be intellectually consistent, at least in terms of this debate.

Put me in the "thinks it should be held unconstitutional but also the decision will be political."Why? Because we all know that the four liberal justice's votes were never in doubt--not because of the legal arguments but because of which party passed the law. I think there is something terribly wrong when we can safely assume the vote of any justice merely because of the political party that passed the law in question.

The political issue is a more basic one than a Nationalized Health Care Plan, which could be upheld: It is whether the SCOTUS will euthanize its roll and delegate its review power to the Congress and President. If it accepts the unlimited Commerce Clause reading in Obamacare, that will say that the President and the Congress can take over every aspect of life lived in the America, State and Federal, by simply saying Dibbs on it.

Obama wants that power badly. He can taste it. That would make him into a Muslim Ayotollah running a ChiCom state.

"The Court's power is only to put the Constitution above a statute, not to factor in the popularity of the statute as if it had policymaking power."

Exactly. I think the Court has enough backbone (or ego) and faith in and adherence to in its oath, as well as confidence in its staying power, to recognize the noise and disregard it. That's the tradition.

I think the most significant thing about this poll is that the sample is badly skewed toward Democrats (D/R/I of 34/23/34, or +11 for Dems) and yet it still produced 67% wanting the law struck down. Imagine what that number would look like with a more realistic sample breakdown...

If the SC doesn't follow the Constitution in the first place, meaning until now, questions about following the law are almost empty of information. Nobody any longer will know what political means, applied to the court's actions.

I'd say that the liberal half will blind themselves like they always do, and it's only political as a term of abuse. It's just what they do. They're liberals.

The conservative side splits between those yelling stop all the time, again just political as a term of abuse, and right wing technicians, who are considering precedent and how to make a minimal further mess of the mess the SC has already made of the Constitution, while still overturning the law.

Their reasoning being that something has to be prohibited by the Constitution somewhere, and a least-messy line has to be drawn here.

That's political as a term of abuse, but law-preserving as a matter of action.

The Althouse essay is impossible to follow, by not realizing what a poll is in the first place.

Skewing a poll towards Democrats doesn't affect the poll. They correct for it.

It's called stratification (I think it's called that, at a distance of decades). Anyway, whatever it's called, maybe weighted sampling, you put the most sampling where there's the most diversity, and wind up with a better poll for your effort.

Hypothetically, Justices who support Obama and would base their decision on "partisan political views" might actually want to see the individual mandate ruled unconstitutional if they subscribe to Althouse's theory that it would help Obama's reelection chances.

Especially if they think reelection it would result a new liberal majority that would be able to revisit all manner of precedent, implementing what many commentators are now openly scheming.

I think the danger for the WaPo is that their poll (like Obama's mouth) is gonna have the same effect as that sign: to encourage the justices to do exactly the opposite of the blatant over-the-top message they're intending to send.

Some of the justices really hate being pushed, but not all of them.

Sorry for skip, Scott. I agree too, I think it will not be 5-4, partly because of the way it was passed.

I think even the liberal justices have a big problem with such a huge and far-reaching law being passed in such a partisan way. It's the fact that they will overcome their political leanings that will strike this down and do so decisively. I too see it 6-2 or even 9-0, to make their point. They know it won't kill reform, just reject it being of a partisan careless kind.

All words with "poli" in them (except Polident) are derived from the Classic Greek for "city state" and refer to government or government action of some sort.The reason we have political parties is that there are different opinions as to how our governments should be run, and those of similar opinions form political parties to promote their own views and protect themselves from those of other opinions.

The only legitimate complaints about "partisanship" is about those whose guiding slogan seems to be "My Party - Right or Wrong!" and those who join a faction for personal gain, without any belief in the ideas promulgated by that faction.

All the analysis I've seen has said Roberts or Alito might throw in with the other side to keep it from being a 5-4 decision if Kennedy goes their way. I haven't seen anyone suggest Kagan or Sotomayor would do the same if Kennedy goes with Thomas. Thomas, Breyer and Ginsburg [and I think Scalia, but others have said otherwise] don't seem likely to swap their vote to give the majority a stronger claim to non-partisanness.

l the analysis I've seen has said Roberts or Alito might throw in with the other side to keep it from being a 5-4 decision if Kennedy goes their way. I haven't seen anyone suggest Kagan or Sotomayor would do the same if Kennedy goes with Thomas.

I have been curious about this possibility.

Might Sotomayor, for example, agree to vote with the majority to strike down the mandate, in exchange for a Roberts or Alito vote in favor of upholding the rest of the law?

This post strikes me as misguided, not because it suggests that the WaPo pollsters may have had an agenda (I assume they did), but because it ignores the larger context.

It's a poll of the general public, an audience having no training in 'constitutional law' and no way to distinguish the real thing from decision-making dressed up to look like law but really something else. The poll is also addressed to an audience that has lived through a long series of politically controversial cases, involving abortion, the death penalty, presidential election disputes, and affirmative action (among other hot-button issues) -- in short, a list containing at least one line of cases that almost the entire non-lawyer population will regard as an example of the SCOTUS imposing its political values under the guise of constitutional adjudication. But, by the same token, few in that audience could explain why the line of cases they regard as politically motivated was illegitimate.

Whatever the motives of the WaPo pollsters in coming up with their wording, the poll is fundamentally playing off that dynamic -- the basic legitimate/illegitimate divide -- at a gut level. With a mass audience, that is all you can really do on something like this, even if it could have been done better.

This is pretty much how the libruls roll, Ann. Why you would want to vote for a Democrat on a regular basis defies the undercurrent of a great many of your posts over the last year.

I think you're great. But I also think you are confused when it comes time to pull the lever. The cognitive dissonance between what you observe in the world and your political choices must produce a great deal of skull noise. But then, you're a woman, and even the most interesting and appealing women live with a distressing level of unrelenting skull noise.

I dont really get your point. You seem to be saying the public reads "politics" into hot-button decisions it does not like since it does not really know enough to be sure anyway. Well, if that is your point it only further emphasizes what Ann is getting at. Why put that utterly predictable poll result (that people see the Court as political) front and center in a story where the much stronger public response is opposition to ObamaCare. Given that strong opposition, the logical inference to draw is that more people will view the decision to uphold ObamaCare as "political" not the decision to reject it. By ignoring the large opposition to ObamaCare, the WaPo is able to use the "Court as political" theme to try to scare the Court into upholding ObamaCare. It seems obvious to me what the WaPo is doing. But it also seems they may be barking up the wrong tree in vain. My guess is the Justices may already be mightly teed off about being lectured to in this sneaky yet imperious way by the likes of the Post since they are getting it from many on the left already. I almost think it might push some of the liberal Justices to dig in their heels even more on this and throw the law out. Might be my wishful thinking. But that's what the WaPo is up to also.

In any case, Ann has zeroed in exactly on the aspect of this story most relevant right now.

JB: Ann's post has two basic points. The first is about how the WaPo presented the poll results. She says that it was to advance a lefty political agenda. And, for another news flash, the sun rose in the East again today. Is there anyone who doesn't know that the WaPo looks at the world from a basically left-of-center perspective? Yes, it's good to keep being reminded that papers like the WaPo have an agenda. But there is nothing about the reminder that is particularly new.

The second point in Ann's post had to do with the way the poll questions were framed. That is the only part of her post that interested me, and what I was commenting about. She gets into the details, and asks (for example): "The pollsters could have asked: Do you think, purely as a matter of constitutional law, that the statute is constitutional or unconstitutional? Then: If the Supreme Court decides the case that way, do you think it will be a decision based mainly on law?"

I don't think more precise questions of that sort in a poll like this matter much or could possibly generate useful information. A general audience has no way to respond to a question asking for an answer "purely as a matter of constitutional law." as for distinguishing among the justices, people often see those of the opposite political opinion as biased, while those with whom they agree as fair-minded.

If you want to get past that level of response, you need an audience that knows how to draw the distinctions the questions are asking them to draw -- here, the ostensible categories are legitimate constitutional adjudication vs. illegitimate political decisionmaking. I doubt very much whether a poll of the general population about ObamaCare (or any other hot button case) could possibly work at that level. The reason is that the audience doesn't know how to draw a line between the two categories at issue, even at a very high level of generality. SO what do you expect to find by making the questions more precise, or multiplying them as Ann suggests?

"It's a shame to have to abet the destruction of public confidence in one of the three branches of government but there's an election to win", says President Obama. "Don't worry though. I'll rehabilitate it when I get my next compliant appointees and they start making the correct decisions".

All the analysis I've seen has said Roberts or Alito might throw in with the other side to keep it from being a 5-4 decision if Kennedy goes their way.

I don't see the logic with Justice Alito, but the thought with the Chief Justice is that he would control the writing of the opinion if he were on the winning side, and so might switch if the vote were looking 5/4 in favor of ObamaCare. Not sure though how credible that is, since Justice Kennedy would presumably be the one controlling the writing of the opinion otherwise, being only less senior than Roberts and, I believe, Scalia.

I'm not, generally speaking, a naif and I do believe the SC Justices make an honest effort to keep politics out of their deliberations.

That does not mean, however, that they are not ideological beings. How they view the Constitution, what they consider its flaws, its strengths; how they view the judiciary, it's purpose and their roles in it; whether they think empathy should be an element of the decision; where they stand on the tug-of-war between the collective and the individual. Those are the things that influence, if not inform, their decisions.